Potter v. Potter

Potter v. Potter (98-442); 170 Vt. 540; 742 A.2d 740

[Filed 06-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-442

                            SEPTEMBER TERM, 1999


Heidi Potter	                       }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Windsor Family Court
	                               }	
Jeffrey E. Potter	               }
	                               }	DOCKET NO. 415-9-95 Wrdmd


             In the above-entitled cause, the Clerk will enter:


       This case presents a single question on appeal: whether husband's
  continuing mortgage  payment, as required by the final order of divorce,
  should be classified as maintenance or as  property settlement for purposes
  of modification.  The family court determined that a real and 
  unanticipated change of circumstances warranted modification of husband's
  spousal support, but  concluded that the mortgage obligation was a property
  settlement and therefore not subject to  modification.  Husband appeals. 
  We agree with this analysis and affirm.

       Heidi and Jeffrey Potter had been married for approximately ten and a
  half years at the  time of their divorce in 1997.  Jeffrey Potter holds a
  civil engineering degree and had an average  annual salary of $37,000 at
  the time of the divorce hearing in December, 1996.  Heidi Potter is 
  employed as a secretary at an elementary school with an annual salary of
  $11,400 at the time of  the divorce hearing.  The Potters have two minor
  sons. 

       The Potters own a home valued at $121,000, and the lower court found
  the marital equity  was $56,000.  The court awarded the house to Heidi
  Potter during the minority of the couple's  sons.  The court ordered that
  the parties pay the mortgage in alternating months, making monthly 
  payments of $523.  The house was not to be sold until 2006, when the
  younger son reached the  age of eighteen.  The court awarded one-half of
  the equity in the marital residence to Jeffrey and  specified a rate of
  interest for the mortgage payments made by him.  

       After making these determinations, the court turned to Heidi's request
  for maintenance in  the amount of $500 per month.  The court recognized
  that Heidi could not maintain the lifestyle  the parties had enjoyed during
  their marriage based on her income alone but concluded "[she]  has a duty
  to enhance her income."  The court awarded only $250 per month maintenance.

       In January 1998, Jeffrey was laid off by his employer.  He moved to
  amend the order of  maintenance and to modify child support.  The court
  found that he had undergone a real,  substantial and unanticipated change
  of circumstances and ordered the amount of spousal support  to be reduced. 
  The court denied Jeffrey's motion to modify his obligation to pay half of
  the  mortgage on the marital residence because it found that the obligation
  was not maintenance and  therefore was not subject to modification.  

       The family court's decision is supported by our decision in Boisselle
  v. Boisselle, 162 Vt.  240, 648 A.2d 388 (1994).  There, the lower court
  awarded the plaintiff-wife exclusive use and  possession of the family home
  and required that the home by sold when the child reached age  eighteen. 
  Further, the court required the proceeds be split equally by the parties
  and required the  parties share certain maintenance costs.  See id. at
  241-42, 648 A.2d  at 388.  On appeal, 

 

  we refused to characterize the provisions for dividing the value of the
  marital home as child  support or maintenance.  We relied on several
  reasons, including the fact that the parties and the  court did not
  consider the award of the home to be maintenance.  See id. at 246, 648 A.2d 
  at  391.  As outlined above, the trial court in this case dealt with
  property and maintenance as  separate issues, at different points in the
  proceeding, suggesting that it considered the award of  the home separate
  from the issue of maintenance.  The second factor we considered in Boiselle 
  was that the award of the home was specifically limited to the period of
  minority of the child of  the marriage.  See id.  The order at issue here
  employs the identical device. 

       Jeffrey's equity interest in the marital residence was the basis for
  imposing the mortgage  obligation in the divorce proceeding.  It is
  reasonable to employ this method of preserving the  status quo of the
  marital residence and protecting the marital asset until it can be sold. In
  this  context the mortgage payment is no different from an installment
  payment as a means of property  division.  Installment payments have long
  been employed in Vermont.  See, e.g., Kanaan v.  Kanaan, 163 Vt. 402, 659 A.2d 128 (1995). 

       It is well-established in Vermont law that a court cannot modify a
  property disposition in  the absence of circumstances like fraud and
  coercion, which would warrant relief from a  judgment generally.  See,
  e.g., Viskup v. Viskup, 149 Vt. 89, 90, 539 A.2d 554, 555-56  (1987).  As
  we stated in Clifford v. Clifford, 133 Vt. 341, 344-45, 340 A.2d 60, 62
  (1975),  "adjustment of property rights accomplished by transfer of
  property and payment of money over  a long period" may not be modified
  except on grounds for modifying an ordinary judgment.

       Therefore, we decline to characterize the mortgage payments as
  maintenance and affirm  the family court's holding that they are part of
  the property settlement.


       Affirmed.

	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice